Texas asks US Supreme Court to intervene in water feud with New Mexico

JUAN CARLOS LLORCA,Associated Press

Posted:
01/09/2013 09:20:36 AM MST

EL PASO, Texas (AP) - Texas officials asked the U.S. Supreme Court on Tuesday to force New Mexico to abide by an agreement about sharing water from the Rio Grande. But New Mexico officials said the move is "tantamount to extortion."

The Texas Commission on Environmental Quality said the litigation was filed after negotiations with New Mexico were unsuccessful. The agency says New Mexico is violating the 1938 Rio Grande Compact that governs how water is shared by Texas, New Mexico and Colorado.

But New Mexico Attorney General Gary King said a 2008 agreement between two water districts unfavorably changed the allocation of water to his state. King said Texas is trying to force New Mexico to abide by an unfair agreement and called the lawsuit "tantamount to extortion."

Texas accuses New Mexico of allowing illegal diversions of surface and underground water of the Rio Grande near the Texas-New Mexico border. Texas officials say those diversions take away water from farmers and residents in and around El Paso, a drought-stricken area that gets about half of its drinking water and most of its irrigation water from the Rio Grande.

New Mexico also has been struggling with drought and above-normal temperatures for the past two years.

Texas is asking the Supreme Court to order New Mexico to comply with the compact and to award damages.

The fight hinges on a 2008 agreement between the federal government and two irrigation districts, one in Texas and the other in New Mexico, that use water from the Elephant Butte reservoir.

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The issue has been ongoing since the 1980s.

Historically, the lawsuit states, New Mexico received about 57 percent of the water from the reservoir, while Texas got the remaining 43 percent. However, King said the 2008 agreement changed the method of water allocation from 57 percent to only 38 percent, while the Texas share was increased to 62 percent.

New Mexico Gov. Susana Martinez's office had not yet seen the lawsuit, her spokesman Enrique Knell said.

"We will continue to strongly defend New Mexico's water rights. We are reviewing the Texas lawsuit and will decide how best to protect the water that is so vital to New Mexican families and businesses. We won't cede a single inch of New Mexico water to Texas," Knell said.

But even if the Supreme Court accepts the case, a ruling could be years away, according to the Texas Commission on Environmental Quality.

In its complaint, Texas estimates the amount of water diverted by New Mexico is at least tens of thousands of acre-feet each year - maybe even hundreds of thousands. An acre-foot equals 325,000 gallons.

New Mexico has had little meaningful snowpack at high elevations in recent years and not enough spring and summer runoff to replenish the state's rivers and reservoirs. Thousands of farmers across southern New Mexico have been forced to pump more groundwater to irrigate their crops. Some stretches of the Rio Grande and Pecos River even went dry last summer, and forecasters are predicting little moisture through the spring months.

Still, Ed Archuleta, president of El Paso Water Utilities, said the complaint is justified. He said drought has forced New Mexico farmers to pump underground water from wells affecting the supply of water to the river. New Mexico, he said, has not monitored the underground pumping by its farmers.

Archuleta said his utility normally gets half of El Paso's water supply from the river - about 60,000 acre-feet - but it received about 45 percent of that amount last year. This year, he is expecting even less but said the city is prepared.

Estevan Lopez, director of the Interstate Stream Commission, disputed claims that Texas has not received the water to which it is entitled.

"Every year they've gotten 57 percent of the water that has been released from the project. Yes, New Mexico used some of it as it went down, but they got return flows. They have not been shorted," he said.

He said Texas is trying to do whatever it can to preserve some of the windfall it received under the 2008 operating agreement with El Paso and the irrigation district that serves farmers in southern New Mexico. He also said the legal action was expected.

Tuesday's lawsuit also argues that New Mexico has litigated in federal and state courts in order to circumvent that 2008 agreement. Both states tried to resolve the issue in 2011, during negotiations that involved Rio Grande Commissioner Patrick Gordon, New Mexico officials and the commissioner of the Texas Commission on Environmental Quality.

"New Mexico's response was to initiate legal action on the same day when our representative was meeting with them," the commission said in an email Tuesday.